More Details of UBS Whistleblower Birkenfeld’s Prosecution Explained in Washington Post

The Sunday, May 15, 2010 Washington Post will include more details on a perplexing question we have written about: how did UBS whistleblower Bradley Birkenfeld get himself prosecuted for a felony, and earn a prison sentence, while he sought to become an IRS whistleblower?

The story by David S. Hilzenrath explains more of the “dance” between Birkenfeld and prosecutors as he apparently partially told the government what he knew about wrongdoing at UBS.

Birkenfeld blew an opportunity to avoid prosecution for his own crimes when he failed to disclose them to the government, according to his sentencing transcript.

An obvious fact most critics of his prosecution seem to miss is that neither Birkenfeld nor his attorneys disputed the prosecutor’s statements at his sentencing that Birkenfeld probably would have avoided any prosecution had he simply told the whole truth to prosecutors. His later protests ring hollow because–when it mattered most–he failed to dispute the damning evidence that demanded his prosecution.

By concealing his own wrongdoing, Birkenfeld apparently also allowed his former client Igor Olenicoff to escape a prison term when the government negotiated probation for him.

I represent many IRS whistleblowers–some with knowledge of tax violations larger than the more than $700 million that UBS agreed to pay the IRS–and yet I remain baffled why Birkenfeld simply did not disclose his own wrongdoing up front.

As the prosecutor acknowledged, Birkenfeld could probably have walked away a free man–and a considerably richer man with the IRS whistleblower rewards–had he simply told the whole truth.

Then again, in his “60 Minutes” interview Birkenfeld had no good explanation why he was carrying diamonds into the country in a toothpaste tube–even as he tried to convince the world of points he refused to make at his own sentencing.

Those facts say something about the credibility of his protests that the “sky is falling” for IRS whistleblowers. It is not falling, at least for the honest IRS whistleblowers willing to tell the whole truth. IRS whistleblowers who tell the truth need not fear, simply because Birkenfeld had the bad judgment to withhold the truth.